Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), enacts—section 1 (3)—“If any question arises in any proceedings under this Act as to the liability to pay compensation under this Act… the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration in accordance with the Second Schedule to this Act.”

Section 13—“In this Act, unless the context otherwise requires … ‘dependants’ means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death … and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, shall include such an illegitimate child …”

First Schedule (8)—“Any question as to who is a dependant shall, in default of agreement, be settled by arbitration under this Act.…”

Page: 803↓

In an arbitration under the Workmen's Compensation Act 1906 brought in the Sheriff Court at Glasgow, in which Jeanie Wright Johnstone sought compensation for the death of William Johnstone, dock-labourer, Glasgow, from James Spencer & Company, shipowners and stevedores there, the Sheriff-Substitute ( Fyfe) sisted proceedings and at the instance of the claimant stated a case for appeal.

The case as stated by the Sheriff-Substitute set forth—“The following facts were admitted:—(1) Holt & Company are owners of the steamship ‘Yangtsze.’ (2) In October 1907 this vessel was put in the berth at Glasgow as a general ship to receive cargo for eastern ports. (3) Spencer & Company, who are stevedores at Glasgow, were employed by the shipowners to load the vessel. (4) William Johnstone was one of a squad of quay labourers employed by the stevedores, Spencer & Company. (5) Whilst engaged at the loading of the vessel on 2nd October 1907 William Johnstone accidentally fell into the hold and was killed.

“The appellant Jeanie Wright Johnstone alleges that she is an illegitimate child of the said deceased William Johnstone.

This allegation is denied.

1. I held that in this process I could not decide the disputed question whether Jeanie Wright Johnstone is the illegitimate child of the deceased William Johnstone. I accordingly sisted procedure in the arbitration process that she might establish her title in a competent Court.…”

The questions of law were, inter alia—“(1) Whether sisting the action, in order that the appellant may establish in a competent Court that she is the illegitimate child of the deceased William Johnstone, was the proper procedure? (2) If so, whether, in the event of the appellant being ultimately successful in obtaining an award of compensation and a decree for expenses, the expenses of the legal proceedings, which may be necessary to establish her title as a dependant, will form part of the expenses of process in the application under the Workmen's Compensation Act? …”

Argued for the appellant—By section 1 (3) of the Act any question arising in proceedings under the Act as to liability to pay compensation was, failing agreement, to be settled by arbitration. Moreover, section 13 of the Act defined dependant as including, inter alios, an illegitimate child, and section 8 of the First Schedule provided that any question as to who was a dependant was to be settled by arbitration. The Sheriff accordingly should for the purposes of the arbitration have decided the question of parentage. There was nothing extraordinary or novel in such a power— e.g. it had been held competent for a Sheriff to decide incidentally whether two parties had been irregularly married— M'Donald v. MacKenzie, February 6, 1891, 18 R. 502, 28 S.L.R. 404.

Argued for the respondents—A construction of the statute which involved the decision of questions of status by persons not necessarily skilled in law should if possible be avoided. Here a slur might be cast upon a deceased workman without a defence being made by his nearest relatives. In M'Donald ( cit. sup.) the husband could have claimed to be heard. The proper and ordinary course where such questions of status arose was to have them determined in a separate action— Swinton v. Swinton, March 20, 1862, 24 D. 833. The Statute 1 Will. IV, cap. 69, section 32, which declared actions for aliment to be competent in the Sheriff Court, did not thereby give the Sheriff jurisdiction to determine, even for the purpose of awarding interim aliment, whether a marriage, which was denied, had taken place— Benson v. Benson, February 14, 1854, 16 D. 555. So this Act did not give the arbiter jurisdiction to determine even for the purpose of compensation questions of parentage.